ACLU of Oregon—News
Volume XXX, Number 1
Spring / Summer 1998
You may have seen some of the recent news media reports on the "political comeback" of Lon Mabon and the Oregon Citizens Alliance. Expect to see lots of similar coverage in the next few months because the OCA is well on its way to qualifying two separate measures for the November ballot.
With the help of the revitalized Oregon chapter of the Christian Coalition, the OCA claims it has already gathered about half the signatures it needs to qualify its anti-choice initiative. They are also on target to qualify their latest anti-gay and lesbian measure that would place the OCA’s definition of "family" in the Oregon Constitution. (Next month we’ll send you our analysis of their second measure-- we call it the "Anti-Family Act.")
As always, Lon Mabon has crafted an initiative which appears at first glance to be reasonable but upon closer examination confirms the extreme political agenda of its author. Also buried in the fine print of the measure is a deep cynicism about government and an almost comical view of the world.
More Than A Late-Term Ban
Mabon is trying to sell his proposed abortion amendment as a "late-term" abortion ban. Because the measure would prohibit second as well as third trimester abortions, it would eliminate virtually all abortions after the first 12 weeks of pregnancy. The only exceptions would be in cases where the life of the pregnant woman was in jeopardy.
If approved by voters, the OCA’s measure would transform Oregon from one of the strongest pro-choice states to have some of the most restrictive abortion provisions of any state in the country. The language of the measure would directly challenge the U.S. Supreme Court’s holding in Roe v. Wade and other cases that have recognized a woman’s right to decide for herself if she will continue a pregnancy.
The Supreme Court has not allowed any abortion bans prior to the third trimester and, even then, only if there are exceptions permitting abortions necessary to protect the health, as well as the life, of the pregnant woman. Because the OCA measure has no exception to protect the health of the woman, it would almost certainly be ruled unconstitutional.
OCA Favors Permanent Legislature?
Section 2 of the OCA measure would require the Oregon Legislature to pass enabling legislation that would provide an "adequate deterrent" to implement their abortion ban. Amazingly, the measure not only requires the 1999 Legislature to pass these new laws, it would prevent the Legislature from going home until the "legislation is signed into law." Presumably, if the Governor vetoed the bills and the Legislature couldn’t muster the votes for a veto override, the Legislature could remain in session indefinitely. Wouldn’t it be ironic if it was the OCA that brought Oregon a full-time Legislature?
Not only does the OCA tell the Legislature to pass new laws, but it also would require all three branches of government—including the courts—to use "the more respectful" term "mother" when referring to the measure instead of "the more sterile and disrespectful" term "pregnant woman." Only the OCA could describe a pregnant woman as sterile!!
That particular paragraph reflects the OCA’s displeasure with the ballot title given the measure by the Oregon Supreme Court when they tried to qualify an earlier version of the measure two years ago. That effort failed because Mabon decided to run for the U.S. Senate against Gordon Smith rather than focus on gathering signatures.
Measure Would Encourage Lawsuits
Finally, the OCA measure includes language that would assure that any Oregon resident or "non-profit entity" could go to court to enforce the provisions of the abortion ban. We assume that Mabon added this language because he doesn’t trust politicians to enforce the measure as vigorously as he would. If he goes to court, he doesn’t want to have to prove that he and his organization have legal standing to sue. This provision would give them standing automatically.
However, it would also give standing to just about anyone. Thus, anti-abortion extremists could sue doctors who allegedly perform "illegal" abortions and force them to prove their innocence in civil lawsuits. Of all of the provisions in this measure, this is the one that could cause the most legal havoc. (See Ballot Title sidebar)
The Oregon ACLU is part of the leadership team of a broad-based coalition preparing to defeat the OCA’s anti-choice amendment. Other organizations involved include Oregon NARAL and the Planned Parenthood Affiliates of Oregon. If you’d like more information about the upcoming campaign, contact the Portland or Eugene ACLU office. Otherwise, watch your mail for updates and requests for help.
Juvenile Curfew: The Latest Craze
First it was Keizer, then Salem, next Silverton and now Eugene and Springfield. Oregon elected officials are eager to join a national trend of implementing daytime curfew restrictions on children under eighteen. These community leaders say that their goal is to save "at-risk" youth from ruining their lives by dropping out of school, committing crimes and ending up in jail. This laudable goal is one everybody supports, but daytime curfews are not the answer and are unconstitutional.
The ACLU is one of the few organizations expressing concerns with these proposals. Our Executive Director, Dave Fidanque has said "we’ve traditionally opposed teen daytime curfews of any kind because it then becomes a status offense merely because of age. There is this escape clause that allows being out for legitimate business, but the bottom line is it gives cops too broad of a discretion to decide what is legitimate. The wording is too vague to withstand challenge. It gives the cop the right to roust the troublemaker who he ‘knows’ is no good."
Keizer’s ordinance has been on the books for two years and Salem’s ordinance has been in effect since last fall. City officials from both communities report that the daytime curfew has been very successful. Silverton’s council tabled a similar proposal recently, but is about to consider the issue again. In Eugene and Springfield, the mayors’ of both communities say this is their highest priority and they hope it would go into effect when school starts in September.
The Eugene ordinance would not set certain hours for the curfew but would rely on schools issuing ID cards to all students. The card, which the police would check when questioning children who aren’t in school, would have the student’s class schedule on it.
Officers who find students who should be in school and aren’t will return the children to school or, if the student has been expelled, to a "court school" that would have regular school classes, mentoring programs and drug and alcohol counseling.
We believe daytime curfews are unconstitutional because it infringes children’s rights to move about freely and could violate their equal treatment under the law by holding them to a different standard than adults. "A lot of curfew ordinances have been tossed out in court. There are fundamental constitutional rights at stake" Fidanque says.
In the Courts
HIV Discrimination Case
In 1996, "John Doe" was hired by an Oregon ski resort to work on their ski patrol. When his employer discovered that Doe’s wife has AIDS, it demanded that he take an HIV test. He was told that if he tested positive he would not be able to work on ski patrol or in food services, but they would accommodate him. Doe refused to take the test and was therefore transferred to a snow removal position working from 10:00 p.m. to 7:00 a.m. He quit after a few days because he was not skilled in driving the big snow trucks and he couldn’t handle the hours. Additionally, he was humiliated at having lost the job he was qualified to do.
ACLU of Oregon cooperating attorney Kathy Wilde assisted Mr. Doe in filing a charge of discrimination with the Equal Employment Opportunity Commission, alleging that the ski resort unlawfully demanded that he be tested and discriminated against him because of his association with a person with HIV. The Oregon ACLU will work jointly with ACLU’s National AIDS Project to assist Mr. Doe as his claim proceeds.
Legal Challenge to Measure 16 Refuses to Die
Measure 16, the Oregon Death with Dignity Act, is in effect and is the law in Oregon. However, some legal questions have yet to be resolved. The National Right to Life’s lawsuit challenging the constitutionality of Measure 16 is still before U.S. District Court Judge Michael Hogan of Eugene. The Ninth Circuit Court of Appeals ruled last year that the plaintiffs in the lawsuit did not have standing to challenge the law and the U.S. Supreme Court refused to hear the case. The case went back to Judge Hogan to be dismissed. However, Right to Life has asked Judge Hogan to allow them to add a new plaintiff and thus allow the case to continue.
The ACLU of Oregon, through cooperating attorney Tom Christ, opposes the addition of this plaintiff and the prolonging of this case. In our brief we suggest that allowing Right to Life to amend this lawsuit will bring additional months of wrangling and the outcome will likely be based on procedural issues and not on the constitutional merits of Measure 16.
It is likely that if Judge Hogan dismisses the original lawsuit against Measure 16, Right to Life will commence a new lawsuit with new plaintiffs to challenge the constitutionality of Measure 16. The Oregon ACLU plans to stay involved in any future challenges to the constitutionality of Measure 16.
At the federal level, there are indications that the task force created by the U.S. Department of Justice to analyze federal drug laws in light of Measure 16 will recommend to Attorney General Janet Reno that prescribing drugs, under Measure 16, to aid a patient in dying is not inconsistent with federal law. Last year the Drug Enforcement Agency (DEA) asserted that physicians prescribing drugs under Measure 16 would lose their federal license to prescribe controlled substances.
State Rep. Uherbelau honored by Jackson Area Chapter
On Sunday, March 15th, the Jackson County area chapter honored State Representative Judy Uherbelau with a Commendation Award presented by David Fidanque. In Rep. Uherbelau’s two terms in the Oregon House, she has a 100% ACLU voting records in both sessions. She was a key member of the House Judiciary Committee this past session. Rep. Uherbelau’s background as an attorney and a nurse gives her added credibility and insight on a number of legislative issues, including physician aid-in-dying, crime and corrections.
Lane Chapter Members Gather April 9th
The Lane County Chapter annual members meeting will be 7pm to 9pm, April 9th at the Collier House on the University of Oregon campus. Discussions will focus on three current threats to civil liberties: the OCA initiatives, daytime curfews for youth (please see newsletter articles on these two topics) and police/citizen review board issues. In November Eugene voters will be asked if they support the formation of a citizen review board that will monitor complaints against police officers. We’ll discuss if this is an effective means of examining individual police complaints and reviewing police policies before they create problems. For more information call the Eugene office.
Garden Party Highlights Lane County Chapter Awards Event
In the afternoon of June 7, 1998, the Lane County Chapter will honor Civil Liberties awardees during its First Annual ACLU Garden Party at the home of past chapter board president Joan Rich in Eugene.
Music, games, including croquet, and refreshments will help kick off this festive event. Stalwart ACLU members, their friends and families are invited to this community wide event. To encourage those attending to join the ACLU of Oregon, we will offer a reduced admission charge to anyone who signs up as a card carrying member of the ACLU.
If you would like to help us make this event a success, please contact us in the Eugene office.
PREVIEW OF COMING ATTRACTIONS!
August 20-October 1, the Multnomah County Library will host "A More Perfect Union: Japanese Americans and the US Constitution". This Smithsonian Institution multi-media exhibition examines the history of Japanese immigration to the US, the internment of 120,000 people of Japanese ancestry during WWII, and the national debate about the rights of Japanese Americans as US citizens. A conference featuring speakers, panel discussions and live theater will be held at Willamette University in Salem, Sept. 18 & 19. Stay tuned for more details!
Your ACLU Legacy
ACLU friends have realized that including the ACLU Foundation of Oregon in their wills is a convenient and meaningful way to continue the financial support they have provided throughout their lives. If you would like to learn more about providing a charitable bequest for the ACLU, contact our development director.
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